Legal Challenges of Building Resilience for Informal Settlements in Developed, Democratic Contexts

• Author: Ju-Ching Huang
• Position: S.J.D. candidate, Georgetown University Law Center; LL.M., Stanford Law School; former policy staff, Ministry of the Interior (Taiwan)
• Pages: 373-415

ARTICLES

Legal Challenges of Building Resilience for Informal

Settlements in Developed, Democratic Contexts

JU-CHING HUANG*

ABSTRACT

Rising sea levels, storm surges, inland and coastal flooding, and other cli-

mate-related risks are threatening human lives. These risks are intensified for

informal settlers who live in environmentally fragile areas, lack secure legal

tenure, and have limited access to public services. To date, most research

regarding informal settlements under climate change has focused on those in

what is commonly known as the developing world, where there are thousands of

dwellers living in large-scale enclaves. Using an analysis of Shezidao, an

unrecognized informal settlement in Taipei City, this paper argues that informal

settlements exist in developed countries as well but that they are mostly ignored

by their governments and underrepresented in the informal settlement scholar-

ship. Few legal scholars have studied informal settlements in a developed and

democratic context. This paper hopes to fill that gap in the legal scholarship.

Given the extra-legal nature of informal settlements, this paper utilizes demo-

cratic principles and international human rights law to discuss the legal chal-

lenges surrounding informal settlements. It also proposes pathways to build

resiliency not just for Shezidao, but also for the greater Taipei City. The same

solutions that are recommended for Shezidao can be applied to the challenge of

building resilience in informal settlements in other developed, democratic

contexts.

* S.J.D. candidate, Georgetown University Law Center; LL.M., Stanford Law School; former policy

staff, Ministry of the Interior (Taiwan). This article is further developed from a policy analysis article

titled Redevelopment or retreat for informal settlers? A case study in Shezidao, Taipei, Taiwan

published in the Special issue: Managed retreat and environmental justice in a changing climate in 11 J.

Env’t Stud. & Sci. 404 (2021). This paper was presented at the Georgetown Summer Faculty Workshop

and the Georgetown SJD workshop. The author would like to thank J. Peter Byrne for his guidance and

support, and Edith Brown Weiss, Robin West, A.R. Siders, William Buzbee, Michael Diamond,

Girardeau A. Spann, Anupam Chander, and Chiara Pappalardo for their valuable comments and

suggestions. Most importantly, the author would like to express gratitude to those who live in Shezidao

and those who have been ghting for its future. © 2023, Ju-Ching Huang.

373

TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374

I. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377

A. Key Features of Informal Settlements . . . . . . . . . . . . . . . . . . . . . . 378

B. The Exacerbated Vulnerabilities Under Climate Change . . . . . . . . 380

C. Responding to the Challenges of Informal Settlements in Democratic

Contexts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381

II. A Case Study In Shezidao, Taiwan . . . . . . . . . . . . . . . . . . . . . . . . . . . . 385

A. The Informality in Shezidao . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387

1. Long-Pending Urban Plan . . . . . . . . . . . . . . . . . . . . . . . . . . 387

2. Lack of Clear Legal Tenure . . . . . . . . . . . . . . . . . . . . . . . . . 390

B. Threats of Informality Under Climate Change . . . . . . . . . . . . . . . . 392

1. Physical Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393

2. Socio-Economic Characteristics of the Residents . . . . . . . . . . 395

3. Political Dynamics and Institutional Marginalization . . . . . . . 398

III. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401

A. Recognizing Informal Settlements in the Developed World . . . . . . 401

B. Strategies for Building Resiliency: Upgrading or Resettlement. . . . 402

1. Upgrading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402

2. Resettlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405

3. Upgrading vs. Resettlement in Shezidao . . . . . . . . . . . . . . . . 408

C. Planning in the Democratic Context . . . . . . . . . . . . . . . . . . . . . . . 409

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 414

INTRODUCTION

As the threat of climate change has become ever more pressing, cities around

the world have struggled to deal with people living in improvised housing—hous-

ing without clear title, located adjacent to eroding shorelines and shifting riverine

areas, and accompanied by frequent flooding or heat waves.

1

These so-called

“informal settlements” exist outside government-designated urban legal systems,

lack secure legal tenure, and have inadequate or no public services such as safe

water pipelines and connections to electricity grids.

2

The residents of these infor-

mal settlements—even residents of informal settlements within highly developed,

relatively rich, and democratic states—are particularly vulnerable to weather

changes brought on by climate change.

This article addresses those vulnerabilities and the various responses states

might take to address them. More specifically, this article ultimately addresses

two key questions that must be raised with regard to informal settlements in the

1. See Robert Kiunsi, The Constraints on Climate Change Adaptation in a City with a Large

Development Deficit: The Case of Dar es Salaam, 25 ENV’T & URB. 321, 325–26 (2013).

2. See David Satterthwaite et al., Building Resilience to Climate Change in Informal Settlements, 2

ONE EARTH 143, 143 (2020).

374 THE GEORGETOWN ENVTL. LAW REVIEW [Vol. 34:373

era of climate change: How should a country decide whether to “upgrade in

place” or resettle the inhabitants of an informal settlement, given its extra-legal

nature? And, in the context of a highly democratized and developed country,

what legal and policy tools are available to governments to build resiliency

against the challenges of our changing climate, not just for informal settlements

but also for the rest of their citizens and residents?

Whereas there are considerable variations among informal settlements around

the world, prevalent features include insecure tenure, environmental vulnerabil-

ity, and susceptibility to political manipulation. For many people, the term “infor-

mal settlement” presents an image of a large-scale slum in a less-developed

country or perhaps in a country that lacks democracy and is ruled by an authori-

tarian regime.

3

Most informal settlements recognized in scholarship are located

in developing or underdeveloped countries in Asia, Africa, and Latin America. In

India, for example, there are large-scale informal settlements in megacities such

as Delhi and Mumbai.

4

In the City of Dar es Salaam, Tanzania, eighty percent of

the city’s population, amounting to more than 3.2 million people, live in informal

settlements.

5

In Cairo, Egypt, more than sixty percent of urban areas are infor-

mal.

6

In Cali, the second largest city in Colombia, there are more than 25,000

informal settlements. This stereotype constrains not only the understanding of the

general populace, but also that of scholars seeking reform.

7

In fact, informal set-

tlements exist in developed and democratic states, not only in underdeveloped or

authoritarian ones.

There are two glaring gaps in current scholarship on informal settlements.

First, current research on building resiliency under climate change for informal

settlements has mostly focused on less developed countries and has overlooked

developed countries. For instance, the UN-Habitat Thematic Guide: Addressing the

Most Vulnerable First: Pro-Poor Climate Action in Informal Settlements focused

on climate adaptation strategies for less developed countries.

8

Satterthwaite’s

research on Building Resilience to Climate Change in Informal Settlements focused

on informal settlements in low- and middle-income countries.

9

The underlying

3. Most research uses the terms global north and global south. This paper found these terms vague

and inaccurate and therefore used the terms developed and less developed instead.

4. Francesco M. Gimelli, Briony C. Rogers & Joannette J. Bos, The Quest for Water, Rights and

Freedoms: Informal Urban Settlements in India, 42 INT’L J. OF URB. AND REG’L RSCH 1080,1082

(2018).

5. Kiunsi, supra note 1, at 322.

6. Heba Allah Essam E. Khalil et al., Could/should Improving the Urban Climate in Informal Areas

of Fast-Growing Cities be an Integral Part of Upgrading Processes? Cairo Case, 24 URB. CLIMATE 63,

65 (2018).

7. See Jean-Louis van Gelder, Paradoxes of Urban Housing Informality in the Developing World, 47

LAW & SOC’Y REV. 493 (2013); NEZAR ALSAYYAD & ANANYA ROY, URBAN INFORMALITY:

TRANSNATIONAL PERSPECTIVES FROM THE MIDDLE EAST, LATIN AMERICA, AND SOUTH ASIA (2004).

8. DAVID DODMAN ET AL., ADDRESSING THE MOST VULNERABLE FIRST: PRO-POOR CLIMATE ACTION

IN INFORMAL SETTLEMENTS (2018).

9. Satterthwaite et al., supra note 2.

2022] LEGAL CHALLENGES OF BUILDING RESILIENCE 375